Wednesday, September 13, 2017

When statutory Period of six months can waived in Mutual Consent divorce

satisfied that a case is made out to waive the statutory period under Section
13B(2), it can do so after considering the following :

i) the statutory period of six months specified in Section
13B(2), in addition to the statutory period of one year under Section 13B(1) of
separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts
in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the
Family Courts Act to reunite the parties have failed and there is no likelihood
of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences
including alimony, custody of child or any other pending issues between the
parties;

iv) the waiting period will only prolong their agony.

19. The waiver application can be filed one week after the
first motion giving reasons for the prayer for waiver.

1. The question which arises for consideration in this
appeal is whether the minimum period of six months stipulated under Section
13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for passing
decree of divorce on the basis of mutual consent is mandatory or can be relaxed
in any exceptional situations.

2. Factual matrix giving rise to this appeal is that
marriage between the parties took place on 16 th January, 1994 at Delhi. Two
children were born in 1995 and 2003 respectively. Since 2008 the parties are
living separately. Disputes between the parties gave rise to civil and criminal
proceedings. Finally, on 28 th April, 2017 a settlement was arrived at to
resolve all the disputes and seeks divorce by mutual consent. The respondent
wife is to be given permanent alimony of Rs.2.75 crores. Accordingly, HMA No.
1059 of 2017 was filed before the Family Court (West), Tis Hazari Court, New
Delhi and on 8 th May, 2017 statements of the parties were recorded. The
appellant husband has also handed over two cheques of Rs.50,00,000/-, which
have been duly honoured, towards part payment of permanent alimony. Custody of
the children is to be with the appellant. They have sought waiver of the period
of six months for the second motion on the ground that they have been living
separately for the last more than eight years and there is no possibility of
their re union. Any delay will affect the chances of their resettlement. The
parties have moved this Court on the ground that only this Court can relax the
six months period as per decisions of this Court.

3. Reliance has been placed inter alia on decision of this
Court in Nikhil Kumar vs. Rupali Kumar 1 wherein the statutory period of six
months was waived by this Court under Article 142 of the Constitution and the
marriage was dissolved.

The text of Section 13B is as follows:

“13-B. Divorce by mutual consent.— (1) Subject to the
provisions of this Act a petition for dissolution of marriage by a decree of
divorce may be presented to the district court by both the parties to a
marriage together, whether such marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that
they have been living separately for a period of one year or more, that they
have not been able to live together and that they have mutually agreed that the
marriage should be dissolved.

(2) On the motion of both the parties made not earlier than
six months after the date of the presentation of the petition referred to in
sub-section (1) and not later than eighteen months after the said date, if the
petition is not withdrawn in the meantime, the court shall, on being satisfied,
after hearing the parties and after making such inquiry as it thinks fit, that
a marriage has been solemnized and that the averments in the petition are true,
pass a decree of divorce declaring the marriage to be dissolved with effect
from the date of the decree.”

4. There is conflict of decisions of this Court on the
question whether exercise of power under Article 142 to waive the statutory
period under Section 13B of the Act was appropriate. In 1 (2016) 13 SCC 383
Manish Goel versus Rohini Goel2, a Bench of two-Judges of this Court held that
jurisdiction of this Court under Article 142 could not be used to waive the
statutory period of six months for filing the second motion under Section 13B,
as doing so will be passing an order in contravention of a statutory provision.
It was observed :

“14. Generally, no court has competence to issue a direction
contrary to law nor can the court direct an authority to act in contravention
of the statutory provisions. The courts are meant to enforce the rule of law
and not to pass the orders or directions which are contrary to what has been
injected by law. (Vide State of Punjab v. Renuka Singla[(1994) 1 SCC 175],
State of U.P. v. Harish Chandra [(1996) 9 SCC 309], Union of India v. Kirloskar
Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand
Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan
[(2002) 2 SC 560]

15. A Constitution Bench of this Court in Prem Chand Garg v.
Excise Commr.[AIR 1963 SCC 996] held as under: (AIR p. 1002, para 12) “12. … An
order which this Court can make in order to do complete justice between the
parties, must not only be consistent with the fundamental rights guaranteed by
the Constitution, but it cannot even be inconsistent with the substantive
provisions of the relevant statutory laws.” (emphasis supplied) The
Constitution Benches of this Court in Supreme Court Bar Assn. v. Union of India
[(1998) 4 SCC 409] and E.S.P.

Rajaram v. Union of India [(2001) 2 SCC 186] held that under
Article 142 of the Constitution, this Court cannot altogether ignore the
substantive provisions of a statute and pass orders concerning an issue which
can be settled only 2 (2010) 4 SCC 393
through a mechanism prescribed in
another statute. It is not to be exercised in a case where there is no basis in
law which can form an edifice for building up a superstructure.”

5. This Court noted that power under Article 142 had been
exercised in cases where the Court found the marriage to be totally unworkable,
emotionally dead, beyond salvage and broken down irretrievably. This power was
also exercised to put quietus to all litigations and to save the parties from
further agony 3. This view was reiterated in Poonam versus Sumit Tanwar4.

6. In Neeti Malviya versus Rakesh Malviya5, this Court
observed that there was conflict of decisions in Manish Goel (supra) and Anjana
Kishore versus Puneet Kishore6. The matter was referred to bench of
three-Judges. However, since the matter became infructuous on account of grant
of divorce in the meanwhile7.

9. After considering the above decisions, we are of the view
that since Manish Goel (supra) holds the field, in absence of contrary
decisions by a larger Bench, power under Article 142 of the Constitution cannot
be exercised contrary to the statutory provisions, especially when no
proceedings are pending before this Court and this Court is approached only for
the purpose of waiver of the statute.

10. However, we find that the question whether Section
13B(2) is to be read as mandatory or

discretionary needs to be gone into. In
Manish Goel (supra), this question was not gone into as it was not raised. This
Court observed :

“23. The learned counsel for the petitioner is not able to
advance arguments on the issue as to whether, statutory period prescribed under
Section 13-B(1) of the Act is mandatory or directory and if directory, whether
could be dispensed with even by the High Court in exercise of its
writ/appellate jurisdiction.”

11. Accordingly, vide order dated 18th August, 2017, we
passed the following order :

“List the matter on 23rd August, 2017 to consider the
question whether provision of Section 13B of the Hindu Marriage, Act, 1955
laying down cooling off period of six months is a mandatory requirement or it
is open to the Family Court to
waive the same having regard to the
interest of justice in an individual case.

Mr. K.V. Vishwanathan, senior counsel is appointed as Amicus
to assist the Court. Registry to furnish copy of necessary papers to learned
Amicus”.

12. Accordingly, learned amicus curiae has assisted the
Court. We record our gratitude for the valuable assistance rendered by learned
amicus who has been ably assisted by S/Shri Abhishek Kaushik, Vrinda Bhandari
and Mukunda Rao Angara, Advocates.

13. Learned amicus submitted that waiting period enshrined
under Section 13(B)2 of the Act is directory and can be waived by the court
where proceedings are pending, in exceptional situations. This view is
supported by judgments of the Andhra Pradesh High Court in K. Omprakash vs. K.
Nalini 10, Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy11, Delhi
High Court in Dhanjit Vadra vs. Smt. Beena Vadra12 and Madhya Pradesh High
Court in Dinesh Kumar Shukla vs. Smt. Neeta13. Contrary view has been taken by
Kerala High Court in M. Krishna Preetha vs. Dr. Jayan 10 AIR 1986 AP 167 (DB)
11 AIR 1994 Kar 12 (DB) 12 AIR 1990 Del 146 13 AIR 2005 MP 106 (DB)
Moorkkanatt14. It was submitted that Section 13B(1) relates to jurisdiction of
the Court and the petition is maintainable only if the parties are living
separately for a period of one year or more and if they have not been able to
live together and have agreed that the marriage be dissolved. Section 13B(2) is
procedural. He submitted that the discretion to waive the period is a guided
discretion by consideration of interest of justice where there is no chance of
reconciliation and parties were already separated for a longer period or
contesting proceedings for a period longer than the period mentioned in Section
13B(2). Thus, the Court should consider the questions:

i) How long parties have been married?

ii) How long litigation is pending?

iii) How long they have been staying apart?

iv) Are there any other proceedings between the parties?

v) Have the parties attended mediation/conciliation?

vi) Have the parties arrived at genuine settlement which
takes care of alimony, custody of child or any other pending issues between the
parties?

14 AIR 2010 Ker 157

14. The Court must be satisfied that the parties were living separately for
more than the statutory period and all efforts at mediation and reconciliation
have been tried and have failed and there is no chance of reconciliation and
further waiting period will only prolong their agony.

15. We have given due consideration to the issue involved.
Under the traditional Hindu Law, as it stood prior to the statutory law on the
point, marriage is a sacrament and cannot be dissolved by consent. The Act
enabled the court to dissolve marriage on statutory grounds. By way of
amendment in the year 1976, the concept of divorce by mutual consent was
introduced. However, Section 13B(2) contains a bar to divorce being granted
before six months of time elapsing after filing of the divorce petition by
mutual consent. The said period was laid down to enable the parties to have a
rethink so that the court grants divorce by mutual consent only if there is no
chance for reconciliation.

16. The object of the provision is to enable the parties to
dissolve a marriage by consent if the marriage has irretrievably
broken down and to enable them to rehabilitate them as per available options.
The amendment was inspired by the thought that forcible perpetuation of status
of matrimony between unwilling partners did not serve any purpose. The object
of the cooling off the period was to safeguard against a hurried decision if
there was otherwise possibility of differences being reconciled. The object was
not to perpetuate a purposeless marriage or to prolong the agony of the parties
when there was no chance of reconciliation. Though every effort has to be made
to save a marriage, if there are no chances of reunion and there are chances of
fresh rehabilitation, the Court should not be powerless in enabling the parties
to have a better option.

17. In determining the question whether provision is
mandatory or directory, language alone is not always decisive. The Court has to
have the regard to the context, the subject matter and the object of the
provision. This principle, as formulated in Justice G.P. Singh’s “Principles of
Statutory Interpretation” (9th Edn., 2004), has been cited with approval in
Kailash versus Nanhku and ors.15as follows:

15 (2005) 4 SCC 480
“The study of numerous cases on this
topic does not lead to formulation of any universal rule except this that
language alone most often is not decisive, and regard must be had to the
context, subject-matter and object of the statutory provision in question, in
determining whether the same is mandatory or directory. In an oft-quoted
passage Lord Campbell said: ‘No universal rule can be laid down as to whether
mandatory enactments shall be considered directory only or obligatory with an
implied nullification for disobedience. It is the duty of courts of justice to
try to get at the real intention of the legislature by carefully attending to
the whole scope of the statute to be considered.’ “ ‘For ascertaining the real
intention of the legislature’, points out Subbarao, J. ‘the court may consider
inter alia, the nature and design of the statute, and the consequences which
would follow from construing it the one way or the other; the impact of other
provisions whereby the necessity of complying with the provisions in question
is avoided; the circumstances, namely, that the statute provides for a
contingency of the non-compliance with the provisions; the fact that the
non-compliance with the provisions is or is not visited by some penalty; the
serious or the trivial consequences, that flow therefrom; and above all,
whether the object of the legislation will be defeated or furthered’. If object
of the enactment will be defeated by holding the same directory, it will be
construed as mandatory, whereas if by holding it mandatory serious general inconvenience
will be created to innocent persons without very much furthering the object of
enactment, the same will be construed as directory.”

18. Applying the above to the present situation, we are of
the view that where the Court dealing with a matter is
satisfied that a case is made out to waive the statutory period under Section
13B(2), it can do so after considering the following :

i) the statutory period of six months specified in Section
13B(2), in addition to the statutory period of one year under Section 13B(1) of
separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts
in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the
Family Courts Act to reunite the parties have failed and there is no likelihood
of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences
including alimony, custody of child or any other pending issues between the
parties;

iv) the waiting period will only prolong their agony.

19. The waiver application can be filed one week after the
first motion giving reasons for the prayer for waiver.

20. If the above conditions are satisfied, the waiver of the
waiting period for the second motion will be in the discretion of the concerned
Court.

21. Since we are of the view that the period mentioned in
Section 13B(2) is not mandatory but directory, it will be open to the Court to
exercise its discretion in the facts and circumstances of each case where there
is no possibility of parties resuming cohabitation and there are chances of
alternative rehabilitation.

22. Needless to say that in conducting such proceedings the
Court can also use the medium of video conferencing and also permit genuine
representation of the parties through close relations such as parents or
siblings where the parties are unable to appear in person for any just and
valid reason as may satisfy the Court, to advance the interest of justice.

23. The parties are now at liberty to move the concerned
court for fresh consideration in the light of this order.

Sunday, September 3, 2017

it is a specific contention that she came to know about the ex parte decree in the middle of July, 2009. She has also contended that the husband did not inform her of the institution of the divorce proceeding and by this, fraud had been committed upon her.

Anyway, the steps taken for substituted service by the husband become rebuttable and the entire matter reveals the fact of the particular case as to service and there cannot be any straight jacket formula to decide that in this case, summons should be treated as duly served under Order 5 Rule 20 of the C.P.C. Since there is a rebuttal on behalf of the wife, in my view, the learned Trial Judge has rightly set aside the ex parte decree so that, the rights and obligations between the parties arising out of marriage tie could be decided upon hearing both the sides. It is not the case of the husband that immediately on getting the ex parte decree he had married and issues were born out of such marriage and so, in my view, the decision of Parimal (supra) will not be applicable in the instant case. So, in consideration of the nature of the relief sought for in that matrimonial proceeding and such situation, in my view, the learned Trial Judge has rightly dealt with the matter thereby setting aside the ex parte decree. There is no ground to reverse the findings of setting aside the ex parte decree.

Though both the parties to the proceeding are educated and are earning from the respective profession, in my view, the awarding costs against the wife and in favour of the husband to the tune of Rs.5,000/- cannot be sustained in a matrimonial proceeding. Therefore the order of the awarding costs of Rs.5,000/- by the learned Trial Judge be set aside.

IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE

Prasenjit Mandal, J.: This application is at the instance of the husband/petitioner and is directed against the judgment and order dated March 19, 2013 passed by the learned Additional District Judge, 14th Court, Alipore in Misc. Case No.16 of 2009 under Order 9 Rule 13 of the C.P.C. arising out of the Matrimonial Suit No.1565 of 2008 (renumbered as Matrimonial Suit No.78 of 2009) thereby allowing the said misc. case with costs of Rs.5,000/- to be paid by the wife/opposite party herein to the husband/petitioner herein. The result is that the ex parte decree for divorce passed on June 29, 2009 in the aforesaid matrimonial suit has been set aside.

The husband/petitioner herein preferred the aforesaid matrimonial suit for divorce before the learned District Judge, Alipore and accordingly, summons was duly served upon the wife/opposite party herein, but, she did not prefer to contest the said matrimonial suit for divorce. As a result, the said matrimonial suit was decreed ex parte on June 29, 2009 thereby decreeing the suit ex parte and declaring that the marriage ties between the parties be dissolved by the decree for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Thereafter, the wife/opposite party herein filed an application under Order 9 Rule 13 of the C.P.C. and the said application was converted into the Misc. Case No.16 of 2009. Both the parties adduced evidence in support of their contentions and upon analysis of the evidence on record, the learned Trial Judge allowed the said misc. case on March 19, 2013 with costs of Rs.5,000/- thereby setting aside the ex parte decree dated June 29, 2009. Being aggrieved by such judgment and order, the husband/petitioner herein has preferred this application.

The wife/opposite party herein is contesting the said application.

Now, the question is whether the impugned order should be sustained.

Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that before disposal of the said matrimonial suit ex parte on June 29, 2009, the learned Trial Judge took necessary steps for service of summons. Even steps for substituted service under Order 5 Rule 20 of the C.P.C. were also taken up by making a paper publication in a widely circulated newspaper. In spite of that, the wife did not come to contest the said matrimonial suit.

Mr. Kushal Chatterjee, learned Advocate appearing for the husband/petitioner herein has contended that the said application under Order 9 Rule 13 of the C.P.C. is not maintainable at all, in view of the fact that though the ex parte decree had been passed on June 29, 2009, the application for setting aside the ex parte decree was filed only on August 29, 2009 and an interpolation had been made in the application to show that the said application had been filed on July 29, 2009.

He has also contended that since the application under Order 9 Rule 13 of the C.P.C. had been filed beyond the period of limitation, there being no application under Section 5 of the Limitation Act for condonation of the delay, the said application is not maintainable at all being barred by the limitation.

He has also contended that there being an interpolation as to the date of filing of the application, the wife/opposite party herein had committed fraud upon the Court and for that reason, the wife is not entitled to get any relief as sought for in the misc. case.

Mr. Kushal Chatterjee has also contended that the wife has failed to show that she was prevented by sufficient cause from appearing before the Court and the fact that, mere irregularity in the service of summons is not at all a ground for setting aside the ex parte decree under Order 9 Rule 13 of the C.P.C.

He has also drawn my attention to the fact that, during the cross-examination of the wife in Misc. Case No.16 of 2009, it has transpired that she came to learn about the institution of the matrimonial suit against her in the Durgapur Court when she went there to appear in a case under Section 125 of the Cr.P.C.

Moreover, the criminal case under Section 498A had been filed at Alipore Court and so, from the application filed by the husband in the said case it would reveal that the husband had clearly stated about the institution of the said matrimonial suit for divorce.

Mr. Aniruddha Chatterjee, learned Advocate appearing for the petitioner has also added that as per second proviso to Order 9 Rule 13 of the C.P.C., no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

In support of the contention Mr. Chatterjee has submitted that in the instant case it is not the case of the wife that no summons was ever served upon her, but, she had no knowledge of the date of hearing of the said suit. The husband had taken all the steps including the steps for substituted service. Not only that, while the husband filed an application for anticipatory bail for the criminal case lodged by the wife under Section 498A of the I.P.C., he stated in the application that he had already filed a suit for divorce and for that reason such criminal case had been filed by the wife.

He has also contended that the wife engaged a lawyer as de facto complainant and he has submitted through the public prosecutor opposing the prayer for bail and so, from such conduct it appears that the declaration of the husband in the said application for bail that he had already filed a suit for divorce proves that the wife had knowledge about the institution of the said suit for divorce. Yet she did not appear in the suit. Since, no application under Section 5 of the Limitation Act has been filed in support of the application under Order 9 Rule 13 of the C.P.C., the same being barred by limitation, the learned Trial Judge was not justified at all in allowing the said application under Order 9 Rule 13 of the C.P.C.

Mr. Aniruddha Chatterjee has also contended that there is no evidence on limitation. The misc. case under Order 9 Rule 13 of the C.P.C. is not maintainable at all and in support of his contention he has referred to the decisions of Mahabir Singh v. Subhas & Ors reported in 2008 (1) SCC 358 particularly paragraph no.6 to 9 thus, he has contended that to set aside a decree passed ex parte, the limitation is 30 days from the date of the decree or where the summons for notice was not duly served, when the applicant had knowledge of the decree. He has also contended that in terms of Section 3 of the Limitation Act, 1963, no Court shall have jurisdiction to entertain any suit or application if the same has been filed after the expiry of the period of limitation.

Mr. Chatterjee has also relied on the second proviso to Order 9 Rule 13 of the C.P.C. and submitted that as per decision of Parimal v. Veena alias Bharti reported in 2011 (3) SCC 545 particularly paragraph no.12, it is obligatory for the Appellate Court not to interfere with an ex parte decree unless it meets the statutory requirement particularly the paragraph no.12 and thus, he has contended that the ex parte decree may be set aside, if the party satisfies the Court that summons had not been duly served or she was prevented by sufficient cause from appearing when the suit was called on for hearing. In the instant case, the appropriate steps were taken under Order 5 Rule 20 of the C.P.c. by publication in a widely circulated newspaper when the notice to the addressee was returned ‘unserved’. So, all the necessary steps had been taken by the husband and, therefore, mere irregularity will not be a ground for setting aside the ex parte decree.

He has also relied upon the decision of Chiranjilal Agarwalla & Anr. v. Jai Hind Investments and Industries Pvt. Ltd. & Anr. reported in AIR 1978 Cal 177 particularly paragraph no.17 and thus, he has contended that mere non-service of summons is not enough to find a cause of action for setting aside a decree. Fraud must be proved for vacating an ex parte decree, otherwise not. Thus, he has contended that the application is not maintainable at all and since fraud had been committed, the said misc. case is liable to be dismissed.

Per contra, Mr. Anit Rakshit learned Advocate appearing for the wife/opposite party herein has contended that, in fact, the application under Order 9 Rule 13 of the C.P.C. had not been filed at all on August 29, 2009 as contended by the husband/petitioner herein but, in fact, it was filed on July 29, 2009 and this fact would reveal from the acknowledgement sheet shown by him to this Court which lays down the date of filing the misc. case on July 29, 2009.

The matrimonial suit was filed in the Court of Alipore and not in any Court under the district of Burdwan. Admittedly, the wife is residing at Durgapur and the husband has contended that he took a rented accommodation at Thakur pukur and he requested the wife to come and stay in the said rental accommodation with the child and the wife has contended that she never stayed in the rented accommodation at Thakurpukur even for a single day. So, when the wife resides outside the jurisdiction of the Court, summons was also to be served upon the wife under the provisions of Order 5 Rule 9(4) and Order 5 Rule 21 of the C.P.C. But, this procedure has not been followed in the instant case.

Having due regard to the submissions of the learned Advocates of both the sides and on perusal of the materials on record, I find that the matrimonial suit is for a decree of divorce at the instance of the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and so, when a decree of desolution of marriage is passed, the marriage tie between the two comes to an end. Admittedly, a child was born in the wedlock and the future of the child is to be considered by passing appropriate orders upon hearing both the sides.

Mr. Anit Rakshit has also pointed out the receipt showing filing of the misc. case under Order 9 Rule 13 of the C.P.C. on July 29, 2009 and thus, he has the materials in support of such contention.

The parties have adduced evidence in support of the respective contentions and from the deposition, it transpires that no notice/summons was served upon the wife through the process server of the Court. Since the wife has taken so other steps such as, filing of a case under Section 125 of the Cr.P.C., a criminal case under Section 498A of the I.P.C. and another case under Section 94 of the C.P.C., it is expected that had she received a notice or summons of the suit for divorce, she would have contested the same. So, the allegation of fraud as contended by the husband cannot be accepted and in my view, the question of limitation does not arise at all, the misc. case having been filed within the statutory period of 30 days from the date of the ex parte decree.

It is a specific contention of the wife that the said application was fixed for hearing, but, she cannot state the exact date of hearing of the said application or the fact that, the said application was fixed for hearing on July 20, 2009. But, it is a specific contention that she came to know about the ex parte decree in the middle of July, 2009. She has also contended that the husband did not inform her of the institution of the divorce proceeding and by this, fraud had been committed upon her.

Anyway, the steps taken for substituted service by the husband become rebuttable and the entire matter reveals the fact of the particular case as to service and there cannot be any straight jacket formula to decide that in this case, summons should be treated as duly served under Order 5 Rule 20 of the C.P.C. Since there is a rebuttal on behalf of the wife, in my view, the learned Trial Judge has rightly set aside the ex parte decree so that, the rights and obligations between the parties arising out of marriage tie could be decided upon hearing both the sides. It is not the case of the husband that immediately on getting the ex parte decree he had married and issues were born out of such marriage and so, in my view, the decision of Parimal (supra) will not be applicable in the instant case. So, in consideration of the nature of the relief sought for in that matrimonial proceeding and such situation, in my view, the learned Trial Judge has rightly dealt with the matter thereby setting aside the ex parte decree. There is no ground to reverse the findings of setting aside the ex parte decree.

Though both the parties to the proceeding are educated and are earning from the respective profession, in my view, the awarding costs against the wife and in favour of the husband to the tune of Rs.5,000/- cannot be sustained in a matrimonial proceeding. Therefore the order of the awarding costs of Rs.5,000/- by the learned Trial Judge be set aside.

The application is, therefore, disposed of in the manner indicated above and the impugned judgment and order is modified to the extent as indicated above.

However, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.

Monday, August 7, 2017

Here for several years the petitioner has been denied the sexual relations despite her advances and requests even during the period both were living under the same roof. Such denial is total negation of one of the most important marital obligations and amounts to cruelty.

Adultery means Sexual intercourse between a married person and a third party. Courts once used adultery, once the sole ground for divorce in some jurisdictions, to punish the guilty. Today courts are more interested in the economic impact of adultery, if any, on the marital estate. The legal definition of adultery however varies from country to country and statute to statute. While at many places adultery is when a woman has voluntary sexual intercourse with a person other than her husband, at other places adultery is when a woman has voluntary sexual intercourse with a third person without her husband’s consent. In the traditional English common law, adultery was a felony. Although the legal definition of “adultery” differs in nearly every legal system, the common theme is sexual relations outside of marriage, in one form or another.

Hindu Marriage Act, 1955, Section 13(1)(i) describe Adultery as a ground of divorce but does not describe what is Adultery? Adultery is describe under Section 497 of the Indian Penal Code (IPC), 1860, as an offence and is punishable. Section 497 describes Adultery as under:

Section 497. Adultery. – Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rap, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall be punishable as an abettor.

Though the statutory provisions of Section 10 of the Indian Divorce Act all for proof of adultery also if the divorce is sought on the ground of cruelty but in view of the view taken by the Special Bench of Kerala High Court in , Ammini E.J. and etc. v. Union of India and others and the Full Bench of Maharashtra in , Mrs. Pragati Varghese and etc. vs. Cyril George Varghese and etc., it is no more necessary for a party seeking divorce on the ground of cruelty to prove adultery.

This being the position of law the petitioner is even otherwise entitled to decree of divorce on the ground of cruelty though she has also proved successfully the ground of adultery.

According to divorce laws, adultery is voluntary sexual intercourse of a married person with a person other than the offender’s wife or husband. Rayden defines it as “Consensual sexual intercourse between a married person and a person of the opposite sex not the other spouse, during the subsistence of marriage. It is no more necessary that a person should continue living in adultery. Single act of intercourse constitutes adultery.

Case laws on Adultery –Grounds of Divorce in India.

The Hon’ble Supreme Court after referring to the above Rule held as follows:-

“In our opinion the rule laid down by the House of Lords, would provide the principle and rule which Indian Courts should apply to cases governed by the Act and the standard of proof in divorce cases would therefore, be such that if the judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence he would be satisfied within the meaning of S. 14 of the Act.”

In Manjit Kaur v. Santokh Singh6 1997(1) Hindu Law Reporter 66, the trial Court had decreed the petition of the husband for grant of divorce on the ground that she was living in adultery. This Court held that in such matters public interest requires that marriage bonds shall not be set aside lightly or without strict enquiry and proof and that the act of adultery in its nature is a very secret act and direct proof could not be available in all cases. It was held that proof of actual adultery is not necessary and cir cumstantial evidence which lends to an inference of adultery was sufficient and that the degree of proof need not reach certainty, but it must carry a high degree of probability. It was held that it required that appreciation of evidence in such cases must be careful and proper and only when evidence is cogent, consistent and reliable, the finding of adultery could be recorded but where the evidence was lacking in corroboration and in consistent and unnatural, no finding of adultery could be recorded.

In the case of Earnest John White v. Mrs. Kathleen Oliva White and Ors..1 AIR 1958 SC 441 which was a case under the Indian Divorce Act,the husband sued his wife for dissolution of marriage on the ground of her adultery between his wife and two other co-respondents. The same was dismissed by the Patna High Court reported in Ear- nist John White v. Mrs. Kathleenm Oliva White and Ors.,2 AIR 1954 Patna 560. The husband in the said case alleged various act of adultery between his wife and other two co-respondents. The allegation of adultery of the wife with one of the respondent was found against the husband which was not challenged. The allegations of adultery be tween the wife and the other respondent were also held to be not proved. In appeal be fore the Hon’ble Supreme Court the husband confined his case to acts of adultery al leged to have been committed at the Central Hotel, Patna where the wife and respondent No, 2 therein were alleged to have resided for three days under assumed names. The wife pleaded that she came to Patna solely with the object of having her tooth extracted and returned to Samastipur, the same day. The Hon’ble Supreme Court referred to the provisions of Section 14 of the Indian Divorce Act which provides:-

“S. 14 “In case the Court is satisfied on the evidence that the case of the petitioner has been proved ”

a decision of the Supreme Court in N.G. DASTANE v. Mrs. S. DASTANE (AIR 1975 Supreme Court 1534) and contended that in a matter like this, particularly seeking divorce on the ground of adultery, the Court can act on preponderance of probabilities and arrived at a conclusion and need not expect that all the conditions prescribed are to be satisfied beyond a reasonable doubt. There is no dispute that Section 10 of the Act enables the husband to seek for divorce on the ground that since the solemnization of the marriage, the wife has committed adultery.

In the Matter of Ammini E.J. And Etc. vs Union Of India (Uoi) And Ors It is evident from the Section that as far as the husband is concerned, the only ground on which he can seek dissolution of marriage is adultery. But at the same time it is important to note that he need establish only adultery committed by the wife since solemnisation of the marriage. On the other hand, as far as the wife is concerned, though she has got a number of grounds for seeking dissolution of marriage adultery simpliciter is not a ground for divorce unlike the husband. As far as the wife is concerned, she has to establish not only adultery of her husband but also that the husband is guilty of either ‘incestuous adultery’ or ‘such cruelty as without adultery would have entitled to a divorce mansa et toro’ or ‘desertion without reasonable excuse for two years or upwards’. Thus even if a wife is able to prove that her husband is living in adultery or that he is guilty of treating her with cruelty habitually and persistently or that he has deserted her for ever, she may not be entitled to get dissolution of her marriage with the husband who perpetrates such activities destructive of not only natural love and affection which is the very basis of the institution of the marriage but also of human dignity.

Hindu Marriage Act, 1955, Sec.13 (1) (ia) deals with the cruelty as a ground for divorce. “The said provision does not define cruelty. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem to determine it. It is a question of fact and degree. If it is mental, The problem presents difficulty”1. “What is cruelty in one case may not amount to cruelty in another case and it has to be determined in each case keeping in view the facts and circumstances of that case”2. “What constitutes mental cruelty for the purposes of section 13 (1) (ia) will not depend upon the numerical count of such incident or only on the continuous course of such conduct but one has to really go by the intensity , gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude necessary for maintaining a conductive matrimonial home”3. “Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case”4. Allegation made in the written statement and the evidence brought on record and came to hold that the said allegations and counter allegations were not in the realm of ordinary plea of defence and did amount to mental cruelty 2. A conscious and delibe statement levelled with pungency and that too placed on record, through the written statement, cannot be so lightly ignored or brushed aside.

“Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party xxx xxx xxx (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;”

In the case of Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73, this Court construing the question of ‘cruelty’ as a ground of divorce under Section 13(1)(ia) of the Act made the following observations :

“Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental.Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent.

Case Law on divorce on grounds of cruelty.

Supreme Court of India

CASE NO.:

Appeal (civil) 3930 of 2002

PETITIONER:

PARVEEN MEHTA

Vs.

RESPONDENT:

INDERJIT MEHTA

BENCH:

D.P. MOHAPATRA, BRIJESH KUMAR.

JUDGMENT:

D.P.MOHAPATRA,J.

Leave granted.

What is the meaning and import of the expression ‘cruelty’ as a matrimonial offence is the core question on the determination of which depends the result and the fate of this case.

The appellant is the wife of the respondent. They were married according to Hindu rites and customs on 6th December, 1985. The marriage was preceded by negotiation between the two families, ring exchange ceremony, etc. A meeting between the boy and the girl was also arranged at Yamuna Nagar in the State of Haryana. After marriage the spouses stayed together at Panipat where the respondent was posted as a Judicial Officer. They lived together till 28th April, 1986 when they parted company never to stay together again. It is the case of the respondent that right from the first day of the marriage he sensed something abnormal with his wife; he was unable to consummate the marriage as there was no cooperation from the side of the wife for sexual intercourse. Despite several attempts cohabitation was not possible for lack of cooperation on the part of the wife. It is the further case of the respondent that when he first met his wife when some members of the two families met he had noticed that she was looking very frail and weak. When he wanted to know the reason for such state of her health her father and other relations told him that she had been undergoing a strict diet control and had been making efforts to reduce her w.eight On questioning his wife immediately after the marriage the respondent could ascertain that she was suffering from some ailment and she was under the treatment of Vaid Amar Nath Sastry of Chandigarh. On 10th December, 1985 the respondent took his wife to see Mr.Sastry at Chandigarh who informed him that father of the girl was his close friend and he was already seized of the problems of her health. He gave some medicines to be taken by her. Thereafter they returned to Yamuna Nagar where parents of the respondent were living. Subsequently, the respondent took the appellant to Panipat where he was posted and they started living there and continued with the medicines. In February, 1986 the appellant agreed to be examined by Dr.B.M.Nagpal of Civil Hospital, Panipat. The doctor advised a thorough check up and diagnosis. However, this was not possible since the appellant did not cooperate and ultimately gave out because she was not interested in taking any medical treatment.

The respondent further alleged that the state of health of the appellant continued to deteriorate; she continued to lose weight; she suffered from asthmatic attacks; on account of her ailment her behavior became quarrelsome; and on trifle matters she threatened to leave the matrimonial home. It was further contended that during her stay at Panipat when Surinder Singh Rao and Virender Jain, friends of the respondent visited his place, the appellant refused to prepare tea and started misbehaving with him in presence of the outsiders thereby causing embarrassment to him. Ultimately on 28th April, 1986 her brother and brother’s wife came to Panipat and took the appellant with them. It was the further case of the respondent that when the appellant was with her parents several attempts were made by him offering to give her the best possible medical treatment so that the condition of her health may improve and both of them could lead a happy married life. All such attempts failed. The offer of medical treatment was rejected and even nature of the ailment suffered by her was not disclosed to the respondent.

On one occasion when Shri S.K. Jain, a senior officer of the Judicial Service, then the Legal Remembrancer of Haryana and who later became a Judge of the High Court was discussing the matter with the parties with a view to bring about a settlement the appellant caught hold of the shirt collar of the respondent and created an ugly and embarrassing situation. Again on 30th July 1986 the appellant accompanied by a number of persons searched for the respondent in the Court premises at Kaithal and not finding him there forcibly entered his house and threatened him. A report about the incident was sent to the superior officer of the respondent. Alleging the aforestated facts and circumstances the respondent filed the petition in August, 1996 seeking dissolution of the marriage on the grounds of cruelty and desertion.

The appellant refuted the allegations made in the petition. She denied that her husband had been misled regarding the state of her health before their marriage. She alleged that the marriage was duly consummated and the phera ceremony was performed; and that her husband had been expressing full love and affection towards her. She denied that she suffered from any serious ailment and had been treated by Vaid Amar Nath Sastri. It was her case that she had become pregnant from the wedlock but unfortunately there was miscarriage. It was the further case of the appellant that the respondent and his parents wanted to pressurise the appellant and her parents to agree for a divorce by mutual consent. On 21st June, 1987 when a meeting of relations of both sides took place at the house of her mother’s sister Smt.Parakash Kapur at Yamuna Nagar the respondent stated that the appellant was too frail and weak; that she must be suffering from some disease and therefore, he was not prepared to take her back. Thereafter several attempts were made by her parents and other relations to persuade the respondent to take the appellant to his house but such attempts were of no avail on account of want of any response from the respondent and his parents.

On the pleadings of the parties, the Trial Court framed the following issues :

“1) Whether the respondent-wife has deserted the petitioner, if so, its effect? OPP

2) Whether the respondent-wife is guilty of cruelty, if so, its effect?

OPP

3) Whether this petition is barred by latches, in accordance with Section 23(1a) and (d) of the Act?

OPP

4) Relief.”

Both the parties led evidence, both oral and documentary, in support of their cases. The Trial Court on assessing the evidence on record, dismissed the petition for divorce filed by the respondent.

The respondent filed an appeal, FAO No.42-M/99 before the High Court assailing the judgment of the Trial Court. The appeal was allowed by the learned Single Judge by the judgment rendered on 1st June, 2000. The learned Single Judge granted the prayer of the respondent for dissolution of the marriage on the ground of cruelty and further held that as the marriage took place about 14 years ago and there was no child out of the wedlock it would be in the interest of justice that the parties should be separated from each other. The operative portion of the judgment is quoted hereunder :

“In view of the discussion as such the only conclusion which can be arrived at is that despite the fact that the respondent is a good lady but has created the aforesaid situation because of her own act and conduct concerning the non-disclosure of her state of health and concealment by her above acted as a mental and physical cruelty to the appellant which entitles him to a decree of divorce. Therefore, the findings of the learned District Judge on issue Nos.1 to 3 are reversed.

For the foregoing reasons, the appeal is allowed, marriage between the parties stands dissolved and a decree of divorce on the grounds of desertion and cruelty is hereby granted in favour of the appellant (husband) and against the respondent (wife). In the circumstances of the case, the parties are left to bear their own costs. However, it would be appropriate to ask the husband not to remarry till 30.9.2000. Hence ordered accordingly.”

The wife, who is the appellant herein, filed an appeal before the Division Bench, Letters Patent Appeal No.1000 of 2000, assailing the judgment of the learned Single Judge. The Division Bench of the High Court by the judgment rendered on 8th August, 2000 dismissed the Letters Patent Appeal in limine. The Division Bench held: “Even otherwise, in the facts and circumstances of the case in hand, in our view, it cannot be said that the husband has tried to take advantage of any wrong on his part. Rather, he did make the best possible effort to explore the possibility of detecting the deficiency or disease, if any, and for treatment of poor health of his wife. But, all in vain. We find no merit in the Letters Patent Appeal. It is, therefore, dismissed in limine.” The said judgment is under challenge in this appeal.

Shri Ujjagar Singh, learned senior counsel appearing for the appellant contended that in the context of facts and circumstances of the case the High Court has erred in granting the prayer for divorce by the respondent on the sole ground of cruelty. He further contended that even assuming that the spouses did not enjoy normal sexual relationship with each other on account of frail health of the appellant and there were heated exchanges between the parties followed by the appellant catching hold of shirt collar of the husband, that is not sufficient to establish a case of cruelty for the purpose of Section 13(1)(ia) of the Act. Shri Singh also contended that if the ground of cruelty fails then the further ground stated in favour of the decree of divorce that the marriage has irretrievably broken down will be of no avail to the respondent.

Shri Sudhir Chandra, learned senior counsel appearing for the respondent strenuously contended that in the facts and circumstances of the case the High Court rightly recorded the finding of cruelty by the appellant towards the respondent. Elucidating the point Shri Sudhir Chandra submitted that the respondent was kept in the dark about the poor state of health of the appellant at the time of the marriage negotiations despite the query made by him about the reason for her frail and weak health. After marriage when the respondent was prepared to provide the best possible medical treatment to improve her health neither the appellant nor her parents extended their cooperation in the matter. Further, the erratic and impulsive behavior of the wife caused serious embarrassment to the respondent before his friends and colleagues. The cumulative effect of all the aforesaid facts and circumstances of the case, according to Shri Sudhir Chandra, give rise to reasonable apprehension in the mind of the respondent that it is not safe to continue matrimonial relationship with the appellant. Thus a case of cruelty for the purpose of Section 13(1)(ia) was made out. It was the further contention of Shri Sudhir Chandra that the respondent remarried in December, 2000, two years after the judgment of the Single Judge and nearly four months after the judgment of the Division Bench was rendered. In the facts and circumstances of the case, urged Shri Sudhir Chandra, this is not a fit case for this Court to interfere with the judgment and decree passed by the High Court in exercise of its jurisdiction under Article 136 of the Constitution of India.

As noted earlier, the learned Single Judge granted the respondent’s prayer for dissolution of the marriage on the ground of ‘cruelty’. Therefore, the question arises whether in the facts and circumstances of the case a case for divorce under Section 13(1)(ia) of the Hindu Marriage Act,1955 (for short ‘the Act’) has been made out. The answer to this question depends on determination of the question formulated earlier. In Section 13(1) it is laid down that :

“Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party xxx xxx xxx (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;”

Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been ‘conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger’ (Russel v. Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition, Volume II page 87]. The provision in clause (ia) of Section 13(1), which was introduced by the Marriage Laws (Amendment) Act 68 of 1976, simply states that ‘treated the petitioner with cruelty’. The object, it would seem, was to give a definition exclusive or inclusive, which will amply meet every particular act or conduct and not fail in some circumstances. By the amendment the Legislature must, therefore, be understood to have left to the courts to determine on the facts and circumstances of each case whether the conduct amounts to cruelty. This is just as well since actions of men are so diverse and infinite that it is almost impossible to expect a general definition which could be exhaustive and not fail in some cases. It seems permissible, therefore, to enter a caveat against any judicial attempt in that direction (Mulla Hindu Law, 17th Eidition, Volume II, page 87).

This Court in the case of Dastane vs. Dastane, AIR 1975 SC 1534, examined the matrimonial ground of cruelty as it was stated in the old Section 10(1)(b) and observed that any inquiry covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious to live with the respondent. It was further observed that it was not necessary, as under the English law that the cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. In essence what must be taken as fairly settled position is that though the clause does not in terms say so it is abundantly clear that the application of the rule must depend on the circumstances of each case; that ‘cruelty’ contemplated is conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The treatment accorded to the petitioner must be such as to cause an apprehension in the mind of the petitioner that cohabitation will be so harmful or injurious that she or he cannot reasonably be expected to live with the respondent having regard to the circumstances of each case, keeping always in view the character and condition of the parties, their status environments and social values, as also the customs and traditions governing them.

In the case of Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73, this Court construing the question of ‘cruelty’ as a ground of divorce under Section 13(1)(ia) of the Act made the following observations :

“Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent.

Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.”

This Court, construing the question of mentral cruelty under Section 13(1)(ia) of the Act, in the case of G.V.N.Kameswara Rao vs. G.Jabilli, (2002) 2 SCC 296, observed :

“The court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the court can find that there is cruelty on the part of the counter-

petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances.”

Quoting with approval the following passage from the judgment in V.Bhagat vs. D.Bhagat, (1994) 1 SCC 337, this Court observed therein:

“Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made”.

Clause (ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91).

In the case in hand the foundation of the case of ‘cruelty’ as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated. When the husband offered to have the wife treated medically she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K.Jain. This Court in the case of Dr.N.G.Dastane Vs. Mrs.S.Dastane (supra), observed : “Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment”.

Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.

Judged in the light of the principles discussed above what we find is that right from the beginning the matrimonial relationship between the parties was not normal; the spouses stayed together at the matrimonial home for a short period of about six months; the respondent had been trying to persuade the appellant and her parents to agree to go for proper medical treatment to improve her health so that the parties may lead a normal sexual life; all such attempts proved futile. The appellant even refused to subject herself to medical test as advised by the doctor. After 21st June, 1987 she stayed away from the matrimonial home and the respondent was deprived of her company. In such circumstances, the respondent who was enjoying normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person expects to enjoy and also social embarrassment due to the behavior of the appellant. Further, the conduct of the appellant in approaching the police complaining against her husband and his parents and in not accepting the advice of the superior judicial officer Mr.S.K.Jain and taking a false plea in the case that she had conceived but unfortunately there was miscarriage are bound to cause a sense of mental depression in the respondent. The cumulative effect of all these on the mind of the respondent, in our considered view, amounts to mental cruelty caused due to the stubborn attitude and inexplicably unreasonable conduct of the appellant.

The learned Single Judge in his judgment has discussed the evidence in detail and has based his findings on such discussions. In the Letters Patent Appeal the Division Bench on consideration of the facts and circumstances of the case agreed with the findings recorded by the learned Single Judge. In the context of the facts and circumstances on record we are of the view that the learned Single Judge rightly came to the conclusion that the prayer of the respondent for dissolution of the marriage on the ground of cruelty under Section 13(1)(ia) of the Act was acceptable. Therefore, the Division Bench committed no error in upholding the judgment of the learned Single Judge.

As noted earlier the parties were married on 6th December, 1985. They stayed together for a short period till 28th April 1986 when they parted company. Despite several attempts by relatives and well-wishers no conciliation between them was possible.The petition for the dissolution of the marriagewas filed in the year 1996. In the meantime so many years have elapsed since the spouses parted company.In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably without any fault on the part of the respondent. Further the respondent has re- married in the year 2000. On this ground also the decision of the High Court in favour of the respondent’s prayer for dissolution of the marriage should not be disturbed. Accordingly this appeal fails and is dismissed. There will, however, be no order for costs.